- (1.) These two applications are heard together as the same questions of law and facts are involved in both these cases.
(2.) The contention of the learned counsel for the applicant in Crl. Misc. Application No. 1378/95 are as follows : The applicant is the Director of the company known as M/s Modi Carpet Ltd. which is a registered company under the Indian Companies Act. Its factory is situated in the district of Rae Bareilly and its registered office is situated at Civil Lines, Modi Nagar, District Ghaziabad.
(3.) Modi Nagar Carpet Ltd. suffered continuous loss running to several crores with the result the same was declared sick unit under the Sick Industrial Companies (Special Provisions) Act, 1984 by the Board of Industries and Financial Reconstruction. A case was registered as the case No. 29/88 and on 9-11-1993 the Board for Industrial and Financial Reconstruction passed an order that the unit cannot be received or rehabilited and thus it came to the conclusion that it was just and equitable that the Modi Carpet Ltd. should be wound up. A copy of the said order dated 9-11-1993 is attached to the affidavit filed along with the application. However, against the aforesaid order an appeal was filed before the appellate authority of Industrial and Financial Reconstruction, the same was also dismissed on 18-10-1994 and a direction was issued that the company should be wound up under S. 20 of the Sick Industrial Companies (Special Provisions) Act, 1984. Copy of the order dated 18-10-1994 is attached to the affidavit of the application, and against the said order of the Board, a special leave petition, was filed before the Hon'ble Supreme Court challenging the order dated 18-10-1994 of the Board, but the Hon'ble Supreme Court vide its order dated 16-12-1994 directed that the company should exhaust all its remedy available under Art. 226 of the Constitution of India, however the Company did not file any writ petition in the Hon'ble High Court at Allahabad except the Writ Petition No. 5844/95 which was filed on behalf of the workers' Union of the Company, which is pending disposal in the Hon'ble High Court, Allahabad. Anyway, the order of the Board dated 9-11-1993 and that of the appellate courts' dated 18-10-94 have not been stayed, and consequently, the proceedings for winding up of the company are going on and the entire matter is before the Official Liquidator. One Sri Ramesh Trivedi filed a case being Case No. 51/94 before the C.J.M., Rae Bareilly, impleading a large number of Senior Officers, Directors, Managing Director, Chief Executive of Modi Carpet Ltd. u/S. 409/420, IPC, wherein it has been alleged that his provident fund dues have not been cleared and hence the accused persons in the complaint should be prosecuted. Copy of the complaint dated 28-5-94 is attached to the affidavit filed along with the application u/S. 482, Cr. P.C. As such in the said complaint case before the learned C.J.M., Rae Bareilly, statement of the complainant u/S. 200, Cr. P.C. and the witnesses u/S. 202, Cr. P.C. were recorded. It has been alleged that their contribution to the provident fund were not deposited in their accounts of provident fund by the Director. As such it is submitted that apart from the employer's contributions to the provident funds, they have intentionally mis-appropriated the money which was deducted from their remuneration as contribution to the provident fund. Copy of the complaint and the statements of the witnesses u/S. 202, Cr. P.C. along with the statement of the complainant u/S. 200, Cr. P.C. have been filed along the affidavit along with the application u/S. 482, Cr. P.C. However, the learned C.J.M., Rae Bareilly passed an order dated 6-2-95 for summoning the accused persons. Copy of the summoning order dated 6-2-1995 is attached to the affidavit filed by the applicants. However, it has been submitted by the learned counsel for the applicants that the entire proceedings right from the complaint up to the summoning order dated 6-2-1995, are wholly illegal and without jurisdiction and as such are not maintainable. However, so far as the applicant is concerned, he is the Director of the company and has never gone to the Factory, nor had he any occasion, directly or indirectly in the matter of provident fund realisation or payments. Thus the matters of provident fund, ESI etc. are dealt with by the officials who are incharge of those departments and Director of the company merely sits in the meetings of the Board of Directors of the company. The entire allegations are against Sri M. C. Jain who was the Chief Executive of the factory and as such the matter of compliance of the statutory duties is dealt with by the General Manager the occupier who is nominated under S. 2(n) of the Factories Act and at the relevant time one Sri M. C. Jain who was the Chief Executive of the factory, was the occupier of the factory and for the sake of convenience, S. 2(n) of the Factories Act, 1948 which provides that an occupier can be nominated who shall have the ultimate control over the factory. The applicant was never nominated and was never functioning as occupier and since the allegations are of the technical breach in compliance of the provisions of law, the liability, if any, was to be dealt with by the occupier. The applicant has been deliberately and falsely implicated in the instant case only to pressurise him. The Employees' Provident Funds and Misc. Provisions Act, 1952, is an Act which deals with the matter of provident fund. Under the Employees' Provident Fund and Misc. Provisions Act, 1952, there is also stipulation of provident fund scheme for the benefit of employees as contemplated under S. 5 of the Provident Fund Act. Section 8 of the said Act provides mode of recovery of money due from the employers. Section 14-A of the said Act deals with the offences committed by the Companies and it provides that any person who at the time of the offence was incharge and was responsible for the conduct of the business of the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against the same and shall be punished accordingly. In this connection a decision of Patna High Court as reported in 1978 LIC (NOC) 152 (Pat) and 1959 Patna, 952 (sic) were referred to. It has been further submitted that under the provisions of S. 20 of the Sick Industrial Companies (Special Provisions) Act, 1985, such proceeding is barred. In this connection a decision of the Allahabad High Court report of 1988, p.215 and the case reported in 1990 SC (Sic) have been referred to. It has been submitted that the liability of the various authorities have been given in the balance sheet and those matters have been duly pressed before the Board of Industries and Financial reconstruction and the same was also dismissed on 18-10-1994 as such there was no concealment of any facts nor there was any criminal intention for the same and as such the matter of civil disputes have been dragged into Court of criminal jurisdiction. Considering the other materials, facts and the circumstances, criminal proceeding is nothing but only an abuse of the process of the Court and as such it has been prayed for quashing of the same. It is submitted by Ld. A.G.A. that the contributions made by the applicant and the other employees which were deducted from their salaries have not been deposited which means mis-appropriation of money as such it was not an offence within the meaning of S. 14-A of the Act. Obviously the provisions of Ss. 409/420 are attracted for their due punishment. It has been further contended that the contention of the learned counsel for the applicant that since Rae Bareilly district comes within the jurisdiction of the Lucknow Bench High Court but by mistake the case has been instituted in the Hon'ble High Court, Allahabad as such it should be transferred to the Lucknow Bench of High Court along with the interim order, if any, and in this regard, learned counsel for the applicant, has cited a decision reported in AIR 1976 SC 331 and a decision of the Allahabad High Court in C.M. Writ Petition No. 8551/87, decided on 27-1-1988 have also been referred to by the applicant which are not applicable in the instant case. It has been further contended that the registered head office of the company is at Ghaziabad which is within the jurisdiction of the Allahabad High Court. From paragraph 5 of the rejoinder-affidavit, it will appear that this Hon'ble Court has ample jurisdiction to proceed with the matter and there is no need of transfering the case to the Lucknow Bench of High Court for adjudication of the matter and it has been further contended that this application should be dismissed and ad interim order be vacated with a direction to the learned Court below to expedite the trial.;